New Zealand Law Society - Council right to reject request for record of ‘without prejudice’ meeting

Council right to reject request for record of ‘without prejudice’ meeting

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The Chief Ombudsman Peter Boshier has ruled that a local council did not need to publicly release the minutes of a meeting on a high-profile housing development.

A journalist made a request for information about a meeting held between Tauranga City Council and Bella Vista Homes Ltd in December 2016.

The council released information about the date and time of the meeting, and the identities of the participants, but withheld the minutes of the meeting under section 7(2)(g) of the Local Government Official Information and Meetings Act 1987 (LGOIMA), in order to maintain legal professional privilege.

The journalist then complained to the Ombudsman.

The council advised that it withheld the minutes on the basis of ‘without prejudice’ privilege, as the meeting was held for the purpose of resolving issues around the Bella Vista development, and to avoid legal proceedings. The council took the view that legal professional privilege includes without prejudice privilege.

The council also considered that section 7(2)(c)(ii) of LGOIMA applied to the minutes, to protect information subject to an obligation of confidence.

The city council recognised that, in light of the later events concerning the Bella Vista development, there was a high public interest in the release of the information. However, it felt this did not outweigh the need to withhold the information.

The Chief Ombudsman found that without prejudice privilege is not an aspect of legal professional privilege. As such, section 7(2)(g) did not apply to the minutes of the meeting.

Mr Boshier acknowledged the high public interest in accountability and transparency. However, he considered that the interest in accountability was met through the published reviews of the Bella Vista development by the Ministry of Business, Innovation and Employment, and the former High Court Judge Paul Heath QC. He also noted that the council had proactively released a summary of the meeting, and that the summary was a fair reflection of all the pertinent points discussed at the meeting.